Any document submitted to the Land Registry will be available for public inspection and copying (section 66, LRA 2002). It is possible to apply to designate a document an exempt information document if it contains prejudicial information (Rule 131, LRR 2003).

"Prejudicial information" is defined as:

Once a document has been exempted, official copies will generally only be issued for the edited version (or composite edited version). It may not be clear from the register whether a document has been designated an exempt information document as the Land Registry's policy will be not to make a specific entry on the register stating this. However, the official copy of the designated document will be recognisable as an exempt information document by the form of the certificate endorsed upon it.

Strictly an undertenant should ask for deduction of all superior titles and the freehold, in particular to ensure that any consents were granted by the superior landlords for the time being. With short leases (say, less than 5 years) this is rarely done in practice, although you will still want to see the superior leases themselves.

Note, however, that eventually it will be necessary to register leases as short as 3 years (and all discontinuous leases plus leases granted more than 3 months before they take effect in possession) — Land Registration Act 2002. When that happens, tenants will want to obtain title absolute and full deduction of all unregistered superior titles will be necessary for that purpose.

The Buyer needs full information about the Lease, any superior leases out of which the Lease has been granted and any freehold matters that may affect the Lease (such as restrictive covenants). If the Lease is registered, the Buyer will be able to obtain some title information from the Land Registry but any information that the Seller can provide will speed up the information-gathering process.

Under the Land Registration Act 1925 leases for 21 years or less were not registrable and therefore title to such leases may not have been deduced when they were granted. Following the implementation of the Land Registration Act 2002 on 13 October 2003, the assignment of a lease which has more than seven years left to run will be registrable and, in order to obtain title absolute, the assignee will want the landlord's title deduced to it. Where there is a licence to assign, the Buyer may well wish to amend it to put the landlord under an obligation to deduce its title.

See note to requirement Drafting note, Requirement 3.2(c).

If the Lease was granted on or after 1 January 1996, the new privity regime introduced by the Landlord and Tenant (Covenants) Act 1995 will apply unless the Lease was granted pursuant to an agreement for lease, an option or court order dated before 1 January 1996. If the Landlord and Tenant (Covenants) Act 1995 does apply, this has important implications for the liabilities of the parties under the lease. If the Lease was granted under an agreement, option or court order dated before 1 January 1996, the Seller will need to supply a copy of the agreement, option or court order.

This anticipates SCPC 8.8.1 and SCPC 1.1.3.

Even if the answer is yes, the Buyer will also need a contract clause to confirm the position as, under SCPC 1.1.3, the Seller can be ready, willing and able to complete (and so could serve a notice to complete) even without holding a discharge. If the answer is no, the Buyer needs to consider the acceptability of undertakings.

In Patel v Daybells [2001] EWCA Civ 1229, the Court of Appeal ruled that the acceptance of a solicitor's undertaking for a DS1 will not normally be negligent. The Court of Appeal left open the possibility that it could be negligent in "exceptional circumstances". These were not specified. The expert evidence in the case (set out in the judgment, but not expressly endorsed by the court) was that it would not be normal or advisable (and therefore might be negligent) to rely on an undertaking:

The court did state that the fact that the seller's solicitor in the case was a sole practitioner was not relevant to the question of the acceptability of an undertaking.

If a DS1 (or DS3 on a sale of part) will not be available on completion and the Buyer's solicitor considers that the circumstances of the transaction might be regarded as exceptional (so that accepting an undertaking from the Seller's solicitor might be negligent), the Buyer's solicitor should consider:

Before the Buyer's solicitor accepts an undertaking where it would not be normal practice to do so, it is essential to explain the risks to the Buyer and get clear instructions that the Buyer is willing to accept them.

Even where the lender is separately represented, the Buyer's solicitor should consider whether there are any exceptional circumstances making it unwise (or potentially negligent) to accept an undertaking (at least without evidence of the lender's solicitor's authority to accept the redemption money).

The use of EDs and e-DS1s is becoming more popular, although at present only in the residential field. As its name implies, no paper DS1 is produced and the Buyer's solicitor has to rely on an undertaking from the Seller's solicitor. In this situation acceptance of the Seller's solicitor's undertaking is inevitable and in exceptional cases the Buyer's solicitor will have to take such additional steps as are available (e.g. split payments, evidence of authority, evidence of sufficient insurance cover).

To avoid delays, the Buyer will want to know what has been done to obtain the consents necessary to enable the Transaction to proceed. This includes consents needed to authorise the Buyer's proposed use of the Property following completion of the Transaction. If the Seller knows what information the landlord and/or any superior landlord will require, it should advise the Buyer in the reply to this requirement.

The need for a consent for change of use or alterations may be referred to in heads of terms or may also become apparent from seeing the Lease or the replies to another CPSE document.

Note that SCPC 2.2.2 provides that the deposit will normally be held by the Seller's solicitor as stakeholder, so the VAT invoice can only be needed if the SCPC are amended (which they may be, e.g. on an auction sale). Where VAT is payable at exchange on the deposit, the Buyer will need a VAT invoice. Although this is required under the Value Added Tax Act 1994, the Buyer may want to include an express obligation in the contract to draw this to the attention of the Seller and to ensure that the invoice is handed over at exchange. In that case, it may be sensible to require a draft invoice to be prepared so that the details can be checked before exchange.

SCPC 2.2.2 also states that the deposit will be paid by direct credit, which is defined in SCPC 1.1.1(g) to mean a direct transfer of cleared funds to an account nominated by the seller's conveyancer and maintained at a clearing bank.